STATE OF NEW JERSEY v. DAVID FILS-AIME

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAVID FILS-AIME, TERRANCE

YOUNG, SERGIO WILLIS,

DWAYNE LAWRENCE, AND

JOSSALYN YOUNG,

Defendants-Respondents.

_______________________________

August 1, 2014

 

Submitted July 21, 2014 Decided

 

Before Judges Harris and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-03-0320.

 

Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

Michael A. Policastro, attorney for respondent Terrance Young.

PER CURIAM

By leave granted, the State appeals from a January 15, 2014 order suppressing evidence seized from an apartment. We reverse and remand for further proceedings.

On December 30, 2012, police officers responded to a report of a burglary on Jackson Avenue in Elizabeth. The victim described the suspect as a "tall, black male" in a "dark jacket," and indicated that he had fled. The officers drove down Jackson Avenue looking for the suspect and noticed a house around the corner on Julia Street that had its front door open. The house had two apartments, one on the first floor and one on the second floor. The officers looked into the open doorway and saw a man and a boy walking toward the front door and another man behind them. The officers believed that one of the men matched the description of the suspect. The officers approached and announced that they were police, and one of the men "hurried" the boy out the door and then attempted to shut the door. The boy told the officers that he lived in the second floor apartment and did not know who the occupants of the first floor were. One of the officers looked into the window and saw four men rushing through the house. The officers entered the apartment and observed an open safe containing narcotics, additional narcotics outside the safe, packaging materials, and mail addressed to one of the defendants.

Officer David Haverty testified that defendant Jossalyn Young identified herself as the tenant of the first-floor apartment. Young was crying and appeared distraught. The officers brought her outside to calm down and then asked for consent to search the apartment. Young signed a consent form, and the officers searched the apartment. In addition to the items that the officers previously observed, the officers found and seized a vacuum sealer and vacuum seal bags.

Defendants were charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2) (Count Two); fourth-degree possession of a prescription legend drug without a prescription, N.J.S.A. 2C:35-10.5e(2) (Count Three); second-degree possession of a prescription legend drug with intent to distribute, N.J.S.A. 2C:35-10.5a(4) (Count Four); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Five); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1a (Count Six). Defendant Terrance Young was also charged with resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Seven).

Defendants filed a motion to suppress evidence recovered from the apartment. The judge heard oral argument, issued an oral opinion, and suppressed the evidence.1 The judge carefully considered the testimony and found that there were no exigent circumstances justifying entry into the apartment, that the plain view exception did not apply because the officers were not lawfully in the viewing area, and that Young did not voluntarily consent to the search.

On appeal, the State contends that the judge erred by granting the motion to suppress because the exigent circumstances, plain view, and consent exceptions to the warrant requirement applied; alternatively, if entry into the apartment was illegal, that the evidence was sufficiently attenuated from any illegality; and defendants lacked standing to contest the search. We agree with the State that there existed exigent circumstances to enter the apartment without a warrant and that the drugs, safe, and drug packaging materials were properly discovered in plain view. Regarding the other items seized, we find that the judge did not make sufficient factual and credibility findings to determine whether consent was valid. Therefore, we need not address the State's attenuation argument. We decline to address the State's standing argument, which was raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 19-20 (2009).

On appeal from a decision granting a defendant's motion to suppress, we defer to the trial court's factual findings "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). We review a trial court's legal conclusions de novo. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect against warrantless entry into the home. State v. Walker, 213 N.J. 281, 289 (2013). But an exception exists "when an officer has probable cause to believe that a crime has been or is about to be committed" and there are exigent circumstances. State v. Nishina, 175 N.J. 502, 515 (2003).

We conclude that, considering the totality of the circumstances, the officers had probable cause to believe that a crime was being committed in the Julia Street apartment, or that one of the men they saw was the Jackson Avenue burglar. A burglary had been reported in a house just around the corner from the apartment; the victim informed the officers that the suspect fled into her backyard, which bordered the backyard of the apartment; the officers saw a man in the apartment who they believed matched the suspect's description; and the officers believed the suspect had either fled to the apartment or was committing a second burglary.

Determining whether exigent circumstances exist is a fact-sensitive analysis. Walker, supra, 213 N.J. at 291-292. Factors include "the degree of urgency and the amount of time necessary to obtain a warrant; reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination. Ibid.

Considering these factors in light of the record, we conclude that there existed exigent circumstances justifying entry into the apartment without a warrant. The police believed that one of the men in the apartment matched the burglary suspect's description and that the suspect had either fled to the apartment or was committing a second burglary; one of the men tried to hurriedly shut the door when he saw the officers; an officer saw through the window that the men were rushing around as if to flee; and Officer Haverty testified that, in the past, obtaining a warrant had taken hours.

We also conclude that the drugs, safe, and packaging materials were seized properly under the plain view doctrine, which permits police officers to seize contraband without a warrant if: (1) the officers are in the viewing area lawfully; (2) the officers "discover the evidence 'inadvertently,' meaning that [they] did not know in advance where evidence was located nor intend beforehand to seize it"; (3) and it is "'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Bruzzese, 94 N.J. 210, 236 (1983) (citations omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). "Immediately apparent" means that the officers have "probable cause to associate the property with criminal activity." Id. at 237 (citation omitted).

Here, the drugs, safe, packaging materials, and mail were in plain view. As we have concluded, the officers lawfully entered the apartment. Officer Haverty testified that the officers were looking for the burglary suspect and did not enter the apartment intending to obtain evidence. And, because the officers were able to identify the drugs and packaging materials as likely narcotics and drug paraphernalia, they had probable cause to believe that these items and the open safe containing drugs were associated with criminal activity. It was not immediately apparent, however, that the mail was subject to seizure. Officer Haverty stated that when the officers first observed the mail "it was nothing that caught our attention at the time." Therefore, the plain view exception does not apply to the mail or to the vacuum sealer and vacuum bags, which were not in plain view.

An exception to the warrant requirement for searches and seizures exists when police obtain valid consent. State v. Douglas, 204 N.J. Super. 265, 275-76 (App. Div.), certif. denied, 102 N.J. 378 (1985). In order to demonstrate that consent was valid, the State has the burden to show that consent was voluntary. State v. Johnson, 68 N.J. 349, 353-54 (1975). This includes a "burden of demonstrating knowledge on the part of the person involved that [the person] had a choice in the matter." Id. at 354.

Officer Haverty and Young provided contradictory testimony about the circumstances under which Young signed the consent form. The judge found that consent was not valid. We do not intimate that, on remand, the judge may not reach the same outcome. But we conclude that there were insufficient factual and credibility findings to determine whether Young voluntarily consented to the search. Therefore, on remand, we direct the judge to make the necessary findings of fact and conclusions of law as to whether consent was valid and whether to suppress the items that do not fall under the plain view exception.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1 Defendants also moved to suppress evidence recovered from a common hallway outside the apartment. The judge denied defendants' motion to suppress this evidence.